United States Constitution

The Constitution of the United States is the supreme law of the United States of America and is the oldest written national constitution still in force. It was completed on September 17, 1787, with its adoption by the Constitutional Convention in Philadelphia, and was later ratified by special conventions called for that purpose in each of the then-existing thirteen American states. It took effect in 1788, and has served as a model for a number of other nations’ constitutions. It created a more unified government in place of what was then a group of independent states operating under the Articles of Confederation.

An original copy of the Constitution can be seen on display today at the National Archives in Washington, DC. The full text of the constitution can be found at wikisource: Full text of the United States Constitution

History

Main article: History of the United States Constitution

After the Revolutionary War, the thirteen states first formed a very weak central government under the Articles of Confederation. This government lacked, for example, any power to impose taxes as it had no method of enforcing payment. It could not even control commerce between the states, leading to a series of conflicting tax laws and tariffs between states. Not only this, but the Articles required unanimous consent from all the states before any changes could take effect. States took it so lightly that their representatives were often absent, and the national legislature was very frequently blocked from doing anything, even ineffectual things, pending appearance of a quorum.

As a result of these problems, a meeting (a ‘convention’ as the term was used then) was called due to a border dispute between Virginia and Maryland, to look into the possibility of amending the articles and strengthening the federal government. Its brief included only amendments to the Articles, but the committee ignored its limitations. It met at Philadelphia, in the summer of 1787, early voted to keep deliberations secret, and decided to draft a new fundamental government design which eventually stipulated that only 9 of the 13 states would have to ratify for the new government to go into effect. All this was criticized as far exceeding their mandate, and being extralegal besides, but the paralysis of the Article of Confederation government was evident and it agreed to submit the proposal to the States despite the exceeded terms of reference. On September 17, 1787, the Constitution was completed in Philadephia, and the new government it prescribed came into existence on March 4, 1789, after fierce fights over ratification in many of the states.

The Constitution

The U.S. Constitution styles itself the “supreme law of the land”. Courts have interpreted this phrase to mean that when laws (including state constitutions) that have been passed by state legislatures, or by the (national) Congress, are found to conflict with the federal Constitution, these laws are null and have no effect. Decisions by the Supreme Court over the course of two centuries have repeatedly confirmed and strengthened this doctrine of Constitutional supremacy.

Final political and governmental authority under the Constitution is vested in the American electorate, who can change the fundamental law, if they wish, by amending the Constitution or, in the extreme, by drafting a new one. The people do not exercise this authority directly, however. They delegate the day-to-day business of government to public officials, both elected and appointed; some of these are provided for in the Constitution.

The power of public officials is limited. Their official actions must conform to the Constitution, and to the laws made in accordance with the Constitution. Elected officials can only continue in office if they are re-elected at periodic intervals. Appointed officials serve, in general, at the pleasure of the person or authority who appointed them, and may be removed at any time. The exception to this practice is the lifetime appointment by the President of Justices of the Supreme Court and other federal judges; the intent of this exception is that they may be free of political obligations or influence.

The principles of government

Although the Constitution has changed in many respects since it was first adopted, its basic principles remain the same now as in 1789:

There are three main branches of government—executive, legislative, and judicial—and they are separate and distinct from one another. The powers given to each are balanced and checked by the powers of the other two. Each branch serves as a check on potential excesses of the others.

The Constitution, together with laws passed according to its provisions and treaties entered into by the president and approved by the Senate, stands above all other laws, executive acts, and regulations. The Federal courts can be asked to examine the acts of public officials (including duly enacted laws), and, if they are found to be unconstitutional, they are overturned.

All persons are equal before the law and are equally entitled to its protection. All states are equal and none can officially receive special treatment from the federal government. Within the limits of the Constitution, each state must recognize and respect the laws of the others. State governments, like the federal government, must be republican in form, with final authority resting with the people.

The people have the right to change their form of national government by means defined in the Constitution itself.

Preamble

The Preamble to the United States Constitution consists of a single sentence that introduces the document and its purpose. Note that the Preamble itself neither grants any powers nor inhibits any actions. It only explains the rationale behind the Constitution. The preamble, especially the first three words (“We the people”) is one of the most often-quoted and referenced sections of the Constitution.

Articles of the Constitution

The remainder of the constitution consists of seven articles; the separation is, generally, reflective of the idea of separation of powers.

Article One establishes the legislative branch of government, Congress, which includes the House of Representatives and the Senate. The Article establishes the manner of election and qualifications of members of each House. In addition, it outlines legislative procedure and indicates the powers of the legislative branch. Finally, it establishes limits on federal and state legislative power.

Article One is the longest of the seven Articles. Amendments to Article One, unlike amendments to other articles, are restricted by the Constitution. No amendment made prior to 1808 could affect the first and fourth clauses of Section Nine of this Article. The former clause prevented Congress from prohibiting the slave trade until 1808; the latter required direct taxes to be apportioned among the states according to their populations. Furthermore, the Constitution precludes Congress from depriving a state of equal representation in the Senate (vide infra) without its consent. Article One also includes the Commerce Clause, granting Congress the power to regulate both international and interstate trade.

Article Two describes the presidency (the executive branch): the powers of the office, qualifications to be president, and procedures for selection. It also provides for the office of Vice President of the United States, a figure whose official role is to step in if the President is incapacitated or resigns, and to serve as the presiding officer for debate in the Senate, with a vote in cases of tie. Article Two also contains the clause that allows for impeachment of Constitutional officers (President, Vice President, Judges). (See presidential system)

Article Three describes the court system (the judicial branch), including the Supreme Court. The article requires that there be one court called the Supreme Court; Congress, at its discretion, can create lower courts, whose judgments and orders are reviewable by the Supreme Court. Article Three also requires trial by jury in all criminal cases, defines the crime of treason, and charges Congress with providing for a punishment for it, while imposing limits on that punishment.

Article Four describes the relationship between the states and the Federal government, and amongst the states. For instance, it requires states to give “full faith and credit” to the public acts, records and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts, records or proceedings may be admitted. The “privileges and immunities” clause prohibits from discriminating against those from other states in favor of their own citizens (e.g., having tougher penalties for out-of-staters convicted of crimes within a state). It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, especially by citizens who live near state borders; but in the days of the Articles of Confederation, crossing state lines was often a much more arduous (and costly) process.

Article Five describes the process of amending the Constitution. It provides for two methods of amendment — either two-thirds of the state legislatures can request a convention for the purpose of considering amendments, or a two-thirds majority of both houses of Congress can pass them. After this step, all proposed amendments are sent to the states, three-fourths of whose legislatures or conventions must ratify them before the proposal can become a part of the Constitution. Article Five also sets limits on the ability to amend the Constitution, although these limits are extremely broad.

Article Six establishes the Constitution and the laws and treaties of the United States made in accordance with it as the supreme law of the land. It also provides that debt accrued under the Articles of Confederation is still valid, and requires that all legislators, federal officers, and judges be bound by oath to support the Constitution.

Article Seven describes the method of ratification. It sets out that only nine states, not all 13, need ratify for the Constitution to take effect, creating a chance that the country would split into two parts, one under the Constitution, the other under the Articles.

Provisions for amendment

The authors of the Constitution were clearly aware that changes would be needed from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation. However, they were also conscious that such change should not be easy, lest it permit ill-conceived and hastily passed amendments. And, they wanted to ensure that an overly-rigid requirement of unanimity would not block action desired by the vast majority of the people. Their solution was to devise a dual process by which the Constitution could be changed.

The first option must begin in Congress which, by a two-thirds vote (of a quorum) in each house, may initiate an amendment. Alternatively, the legislatures of two-thirds of the states may ask Congress to call a national convention to discuss and draft amendments. In either case, amendments must have the approval of the legislatures or conventions of three-fourths of the existing states before they become part of the Constitution. Some people feel that demographic changes in the U.S. — specifically the great disparity in population between states — have made the Constitution too difficult to amend, with states representing as little as 4% of the population theoretically able to block an amendment desired by over 90% of Americans; others feel that it’s unlikely that such an extreme result would happen. However, any proposals to change this would necessarily involve amending the Constitution itself, creating something of a Catch-22.

Aside from the direct process of changing the Constitution, the practical effect of its provisions may be changed by judicial decision. The United States is a common law country, and courts are obliged to follow the precedents established in prior cases. That being so, a Supreme Court decision deciding that some part of the Constitution means this rather than that will establish this as the meaning of that part for all practical purposes. Not long after adoption of the Constitution, in the 1803 case of Marbury v. Madison, the Supreme Court established the doctrine of judicial review, which is the power of the Court to examine legislation and other acts of Congress and to decide their constitutionality. The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to particular cases brought before the Court. Since such cases will reflect changing legal, political, economic, and social conditions, this provides a mechanism, in practice, for adjusting the Constitution outside of amendments. Over the years, a series of Court decisions, on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has had the effect of modifying what had been previously understood to be the meaning of many Constitutional clauses, with no change in the actual text of the Constitution itself.

Congressional legislation, passed to implement provisions of the Constitution or to adapt those implementations to changing conditions, also broadens and, in subtle ways, changes the meaning of the Constitution. Up to a point, the rules and regulations of the many agencies of the federal government have a similar effect. In case of objection, the test in both cases is whether, in the opinion of the courts, such legislation and rules conform with the meaning of the Constitution.

Amendments

The Constitution has been amended on only seventeen occasions since 1789, as the first ten of twenty-seven amendments were ratified by the states simultaneously. And it is likely to be further revised in the future. The most sweeping changes occurred within two years of its adoption. In that period, the first ten amendments, known collectively as the “Bill of Rights,” were added.

Many scholars have noted the relatively small number of amendments to the Constitution. Some attribute this to the simplicity of the Constitution and its flexibility, as it is continually reinterpreted by the courts. Others, however, believe that demographic shifts have given too much power to smaller states, thereby stifling what they contend is needed reform.

The Bill of Rights

Main article: United States Bill of Rights

The Bill of Rights consists of the first ten amendments to the Constitution, all passed within the first few years of the nation’s history, and sharing a theme of limiting the power of the federal government. They were added as a result of objections to the Constitution during state ratification debates and based on criticism of the new document (including from Thomas Jefferson (who had been abroad during the Constitutions’ drafting)); broadly the objection was that the strong central government would tyrannize citizens if left unrestrained. Congress approved these amendments as a block of twelve in September 1789, and the legislatures of enough states had ratified ten of those twelve by December 1791; they thereupon become part of the nation’s highest legal document.

Originally, the Bill of Rights was not intended to apply to the states; for instance, some states in the early years of the nation officially established a religion. This interpretation of these Amendments remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court has interpreted this clause to extend some, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court; for example, a recent case dealt with whether a state could be sued by an employee under the federal Americans with Disabilities Act of 1990 (see Federalist Society and Federalism).

An eleventh proposal, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it and, as a result, it became the Twenty-seventh Amendment despite more than two centuries of pendency. A twelfth proposal — still technically pending before the state legislatures for ratification — pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this twelfth proposal is Kentucky in 1792 during that commonwealth’s first month of statehood.

The ten Amendments collectively known as the Bill of Rights remain as they were adopted two centuries ago. The first guarantees freedom of worship, speech, and press; the right of peaceful assembly; and the right to petition the government to correct wrongs. It also prohibits Congress from “mak[ing] any law respecting an establishment of religion” — making this amendment a battlefield in the late-20th century culture wars. The second guarantees the right to bear arms; whether this right extends to private citizens or only state militias is a matter of hot popular debate (see gun politics in the United States), though the Courts have interpreted its meaning in several cases since 1900. The third provides that troops may not be quartered, (ie, garrisoned) in private homes without the owner’s consent. The fourth guards against unreasonable searches, arrests, and seizures of property.

The next four amendments deal with the system of justice. The fifth Amendment forbids trial for a major crime except after indictment by a grand jury. It prohibits repeated trials for the same offense after an acquittal (except in certain very limited circumstances), forbids punishment without due process of law, and provides that an accused person may not be compelled to testify against himself. The sixth guarantees a speedy public trial for criminal offenses. It requires trial by a jury (of peers), guarantees the right to legal counsel for the accused, and provides that witnesses shall be compelled to attend the trial and testify in the presence of the accused. The seventh assures trial by jury in civil cases involving anything valued at more than 20 U.S. dollars. The eighth forbids excessive bail or fines, and cruel or unusual punishment.

The last two of the ten amendments contain very broad statements of constitutional authority. The ninth declares that the listing of individual rights is not meant to be comprehensive; that the people have other rights not specifically mentioned in the Constitution. The tenth provides that powers not delegated by the Constitution to the federal government nor prohibited by it to the states are reserved to the states or the people.

The Bill of Rights and subsequent amendments have placed some fundamental human rights at the center of the U.S. legal system, and have served as a model for others.

Subsequent amendments

Amendments to the Constitution subsequent to the Bill of Rights cover a wide range of subjects. The majority of the seventeen later amendments stem from continued efforts to expand individual civil or political liberties, while a few are concerned with modifying the basic governmental structure drafted in Philadelphia in 1787.

There also have been many failed attempts to amend the Constitution. There are some that are still ongoing today.

Fourteenth Amendment (1868) Further defines ‘United States citizen’ and includes the privileges and immunities, due process and equal protection clauses; regulation of congressional elections; restrains states from infringing upon constitutional protections such as the Bill of Rights and other “fundamental rights” of citizens and persons under the jurisdiction of the United States.[4]

Twenty-first Amendment (1933) Repeals prohibition of alcohol established in the 18th Amendment.[11]

Twenty-second Amendment (1951) Limits president to two terms.[12]

Twenty-third Amendment (1961) Grants electors to District of Columbia.[13]

Twenty-fourth Amendment (1964) Abolishes poll taxes.[14]

Twenty-fifth Amendment (1967) More presidential succession rules.[15]

Twenty-sixth Amendment (1971) Right of eighteen-year-olds to vote.[16]

Twenty-seventh Amendment (1992) Limits congressional pay raises.[17]

Failed amendments

Over 10,000 Constitutional amendments have been proposed in Congress since 1789; in a typical Congressional year in the last several decades, between 100 and 200 are proposed. Most of these proposals never get out of Congressional committee, much less get passed by the Congress. Backers of some amendments (how many?) have attempted the alternative method mentioned in Article Five, but no proposal of this sort has ever gotten far enough to be considered by all the state legislatures.

The Eighteenth Amendment is the only amendment to be directly and specifically “un-done” by another (the Twenty-first). The episode highlighted the importance of proposing and ratifying only the most important, and least evanescent, of amendments.

Of the thirty-three amendments that have been proposed by Congress, six have failed ratification by the required three-quarters of the state legislatures — and four of those six are still technically pending before state lawmakers. Starting with the 18th amendment, each proposed amendment (except for the 19th Amendment and for the still-pending child labor amendment of 1924) has specified a deadline for passage. The following are the failed amendments:

The Unratified Amendment Twelve proposed by the 1st Congress on September 25, 1789 defined a formula for how many members there would be in the United States House of Representatives after each decennial census. Ratified by eleven states, the last being Kentucky in 1792, this amendment contains no expiration date for ratification. It may yet be ratified.

The so-called missing thirteenth amendment, or “Title of Nobility Amendment” (TONA), proposed by the 11th Congress on May 1, 1810, which would have eliminated the citizenship of any American accepting “any title of nobility or honour” from any foreign power. A few people maintain that this amendment was actually ratified by the legislatures of enough states, and that it has been illegally removed from the Constitution. Known to have been ratified by lawmakers in at least twelve states, the last in 1812, this amendment contains no expiration date for ratification. It may yet be ratified.

A pro-slavery proposal, known as the Corwin amendment, proposed by the 36th Congress on March 2, 1861 which would purportedly have prevented the passage of any future constitutional amendment allowing Congress to regulate “the domestic institutions” within any state. It was ratified by only Ohio and Maryland lawmakers before the outbreak of the Civil War. Illinois lawmakers—sitting as a state constitutional convention at the time—likewise approved it, but that action is of questionable validity. The proposed amendment contains no expiration date for ratification. Passage of the 13th, 14th, and 15th Amendments after the Civil War have made this proposal effectively moot. (Presumably, however, any such subsequent amendment on this subject would likely include the withdrawal of this still-pending proposal.)

A child labor amendment proposed by the 68th Congress on June 2, 1924 which stipulates: “The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.” Since this amendment was not ratified, this power theoretically remains with the states: however, subsequent federal child labor laws have uniformly been upheld as a valid exercise of Congress’ powers under the commerce clause. This amendment contains no expiration date for ratification. It may yet be ratified.

The Equal Rights Amendment, or ERA, which reads in pertinent part “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Proposed by the 92nd Congress on March 22, 1972, it was ratified by the legislatures of 35 states, and expired on either March 22, 1979 or on June 30, 1982, depending on one’s point of view of a controversial ratification deadline three-year extension by the 95th Congress in 1978. Of the 35 states ratifying it, five later rescinded their ratifications well prior to 1979. Opinions differ now (and then) on whether such reversals are valid; no court has ruled on the question, including the Supreme Court.

An amendment proposed by the 95th Congress on August 22, 1978 giving Washington, DC two Senators and at least one Representative as though it were a state. Ratified by the legislatures of 16 states—less than half of the required 38—it expired on August 22, 1985.

Proposed amendments

There are currently only a few proposed amendments which have entered mainstream political debate. These include the proposed Federal Marriage Amendment, the Balanced Budget Amendment, and the flag-burning amendment. For more information see proposed amendments to the United States constitution.